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ple's Steamboat Company and its officers and agents, for the purpose of obtaining an injunction restraining the corporation defendant from using certain wharves on the Rappahannock River, in the State of Virginia, of some of which the complainant was the owner in fee, and of others the lessee of the exclusive use from the owners. The complainant contended that it had the exclusive right to the use of such wharves, either as owner or lessee, and that the defendant illegally and against the will of the complainant insisted upon using them to carry on its business, although offering to pay the complainant what was the reasonable value of the defendant's use of such wharves.

The corporation and the individual defendants filed joint and separate answers, setting up a claim of right to the use of such wharves upon compensation being made therefor, and the case came before the court on motion of complainant for a temporary injunction, as prayed for in the bill of complaint. The court, without then passing upon any other question, ordered that the matter be referred to a special master for the purpose of taking such evidence as might be submitted to him by either party, or which he might find necessary to take, bearing upon the title to the several wharves mentioned in complainant's bill and claimed by complainant, and to ascertain what rights passed to complainant with the acquisition of such wharves and whether or not the wharves were public or private wharves. Pursuant to this order of reference, hearings were had before the master, who returned the evidence taken before him with his opinion in favor of granting the injunction as prayed for by the complainant, on the ground that the wharves in question were private wharves owned or leased by the complainant, who had the exclusive right to their use. The facts found by the master were not overruled, but his conclusions of law were not concurred in by the court, and the preliminary injunction was refused. The case was then submitted to the court for trial upon all the evidence taken, and the bill was dismissed with costs. 141 Fed. Rep. 454.

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Argument for Petitioner.

The complainant appealed from the decree of dismissal to the Circuit Court of Appeals for the Fourth Circuit, where it was affirmed upon the opinion of the Circuit Court.

The complainant then applied to this court for a writ of certiorari to bring the case here, which petition was granted, and the case has been submitted to this court upon the briefs of respective counsel.

Mr. St. George R. Fitzhugh and Mr. George Weems Williams, with whom Mr. Nicholas P. Bond was on the brief, for petitioner:

The mere fact that property is owned by a common carrier does not make such property subject to any and every public use. Neither does the fact that property may be used by a common carrier in its business as such subject it to any use that may be of supposed or actual benefit or advantage to the public, but the carrier fulfills its obligation if it permits the public, without discrimination, to use such property in transacting business with it as such carrier. Donovan v. Pennsylvania Co., 199 U. S. 279; Pittsburg &c. Ry. Co. v. Bingham, 29 Ohio St. 364, 370; 1 Farnham on Waters and Water Rights, § 66, p. 297; Same, § 110, pp. 509, 510; Same, § 112, p. 523; Same, § 1136, pp. 533, 534; King v. Russell, 6 Barn. & C. 566; Yates v. Milwaukee, 10 Wall. 497; Weber v. Board of Harbor Commissioners, 18 Wall. 57.

The right to maintain private wharves in a navigable river was recognized again in Transportation Co. v. Parkersburg, 107 U. S. 691, and in Ill. Cent. R. Co. v. Illinois, 146 U. S. 387, 445, 446, and in Dutton v. Strong, 1 Black, 23.

The right of a riparian owner as to the erection of wharves in Virginia under statute, and the decisions of Virginia courts, is as follows:

Code of Virginia of 1887, § 998:

"Any person owning land upon a water course may erect a wharf on the same, or pier or bulkhead in such water course opposite his land, provided the navigation be not obstructed,

Argument for Petitioner.

214 U. S.

nor the private rights of any person be otherwise injured thereby. But the court of the county in which said wharf, pier or bulkhead is, after causing ten days' notice to be given to the owner thereof of its intention to consider the subject, if it be satisfied that such wharf, pier or bulkhead, obstructs the navigation of the water course, or so encroaches on any public landing as to prevent the free use thereof, may abate the same." See Norfolk City v. Cooke, 27 Gratt. 430, 435; Railway Co. v. Faunce, 31 Gratt. 761, 764, 765; McCready v. Commonwealth of Virginia, 27 Gratt. 985; Hardy v. McCullough, 23 Gratt. 251, 262.

The statutes of Virginia and the decisions of its courts govern in the determination of the rights of a riparian owner in the navigable waters of that State. Shively v. Bowlby, 152 U. S. 1, 24-26; Illinois Central Ry. Co. v. Illinois, 146 U. S. 387; St. Anthony Falls v. St. Paul, 168 U. S. 349.

The plaintiff is not, because it is a common carrier, bound to permit, upon any terms, vessels competing with its own for the same business to make use of its wharves for the purpose of such competition, and can exclude not only competitors, but all persons, from the use of its wharves, except those who have business to transact thereat with it as a common carrier.

The fact that public roads have been built to the shore ends of certain of these wharves has no effect on their character as private wharves or the plaintiff's rights to limit their use to its own patrons or other persons having business with it as a common carrier.

The fact that nearly all these wharves are built in the open country, along the banks of the river, and not in cities or towns or harbors or places where there may be more than one landing place, makes no difference in the real character of these wharves, whether public or private.

The law does not declare that a wharf, which is public in the sense that the owner thereof has permitted the public to use it for any purpose upon payment of compensation, shall for all time remain public, but allows the owner thereof to change the

214 U.S.

Argument for Respondents.

public character of such a wharf by a proper and reasonable notice. See Louisville & Nashville R. R. Co. v. West Coast Naval Stores Ca., 198 U. S. 483; Exterkamp v. Covington Harbor Co., 104 Kentucky, 796; Brisbine v. St. Paul Railway Co., 23 Minnesota, 114, 129, 130; California Nav. Co. v. Union Co., 126 California, 433; Irwin v. Dixion, 9 How. 33; Coney v. Brunswick St. Co., 42 S. E. Rep. 498; S. C., 116 Georgia, 222; Mills v. Evans, 100 Iowa, 712. See also Bogert v. Haight, 20 Barb. 251.

The opinion of the Circuit Court complained of herein disregards the principles of the cases which hold that a common carrier has the right to select its agencies for conducting its business and to decline to allow other carriers the use of its terminal facilities. Atchison &c. R. R. v. Denver & N. O. R. R., 110 U. S. 667; Express Cases, 117 U. S. 1; St. Louis Drayage Co. v. Louisville & N. R. R., 65 Fed. Rep. 39.

That a wharf owner may revoke a license to use his property is settled in the following cases: Railroad Company v. Hanning, 15 Wall. 649; Ilwaco &c. Co. v. Oregon Short Line, 57 Fed. Rep. 673; Coney v. Brunswick &c. Co., 116 Georgia, 222; Bogert v. Haight, 20 Barb. 251; Heaney v. Heaney, 2 Denio, 625; Swords v. Edgar, 59 N. Y. 28, 31, 32. Compare O'Neill v. Aunett, 27 N. J. L. 290; see also 29 Am. & Eng. Ency., 1st ed., 64.

Mr. William D. Carter, with whom Mr. Ellerbe W. Carter was on the brief, for respondents:

The right to "wharf out," neither under the common law nor by statute, is conferred upon any common carrier as such. No common carrier takes such right by Magna Charta, nor has it such "jus naturalis." The privilege of constructing pier wharves, and duties which arise when the privilege is exercised, pertain only to riparian proprietors. If the "plaintiff" owns a wharf, it is as a riparian proprietor, and not because it is a common carrier, that it is permitted to hold, maintain, and enjoy the same. Hunt v. Ill. Central R. R., 184 U. S. 77, 86;

Argument for Respondents.

214 U.S.

S. C.,146 U. S. 387; Yates v. Milwaukee, 10 Wall. 497; Dutton v. Strong, 1 Black, 23; Virginia Code, §§ 998, 999.

Equity and justice require that the appropriate rules of law be made to apply to every riparian proprietor alike. One riparian proprietor who has exercised his privilege of constructing a wharf may enjoy his structure in his own way, and put the wharf to his own use alone, or to his own use collectively with others, provided the uses are restricted and the location and surrounding circumstances permit such use without injury to the public. Dutton v. Strong, 1 Black, 23; L. & N. R. R. Co. v. West Coast Naval Stores Co., 198 U. S. 483.

The title to navigable waters and to the soil under water in navigable rivers, is and must be held in perpetual trust for the public as beneficiary. Martin v. Waddell, 16 Pet. 410; Shepherd's Point Land Co. v. Atlantic Hotel, 44 S. E. Rep. 39; Smith v. Maryland, 18 How. 71, 74.

Though his domain stops at low-water mark, the riparian proprietor (and he alone) may build out a wharf structure in aid of navigation. Mobile Transp. Co. v. Mobile, 13 L. R. A. 352; 1 Farnham on Waters, p. 227, § 113b; Dutton v. Strong, 1 Black, 23; Yates v. Milwaukee, 10 Wall. 497.

The legislature of Virginia has, by statutory enactment, clared this rule of law also. Code of 1887, §§ 998, 999.

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In building a wharf under § 998, the riparian proprietor exercises an inherent privilege which he enjoys under the law. Whether he makes of his wharf a private "staith" or a public facility depends mainly on the use to which it is subsequently put. He may charge for the use of his wharf, but the charge must be "reasonable" if he serves the general public. Code of Virginia, § 999; Transportation Co. v. Parkersburg, 107 U. S. 691; Riddick v. Dunn, 58 S. E. Rep. 493; Mobile Transp. Co. v. Mobile, 13 L. R. A. 352; and see Gibler v. St. Louis Terminal Assn., 203 Missouri, 208, for an exposition of the duties owed the public by a toll bridge owner, and what differentiates between such a public servant and a common carrier. Both serve the public, but a common carrier furnishes transporta

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